June 13, 2009

On May 1, having received notice that Justice Souter will retire, President Obama said:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

Let’s assume that the President — who used to teach constitutional law — has arrived at this preference through studying the cases that we studied in this course. [We studied equal protection and due process.] He might see various of the opinions as the product of “some abstract legal theory or footnote in a case book.” Other opinions might seem to him to spring from an awareness of “how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation” and so forth.

Don’t assume the listed “daily realities” are the only “daily realities” that he thinks a Justice should “understand and identify with” to “arrive at just decisions and outcomes.” And consider that he merges this “quality of empathy” with dedication to the rule of law, honor for constitutional traditions, and respect for “the integrity of the judicial process and the appropriate limits of the judicial role.”

Where, in the cases that we studied, has it mattered whether a Justice followed abstract theories and dry text from case books instead of the things the President wants from a Supreme Court Justice? Choose specific opinions (majority, concurring, or dissenting) ... that illustrate the two types of judicial reasoning that the President contrasted....

[L]ooking at the opinions you have written about, take a position on the importance of the quality of empathy in a Supreme Court Justice.

I read nearly 60 exams, and it was interesting to see which cases were chosen in the 2 categories. One case clearly won the prize for most empathetic. Perhaps you can guess. Interestingly, one opinion that was frequently presented as empathetic was also cited a few times as an example of the abstract type. That's not surprising: a judge driven to a conclusion by empathy might strive mightily to present the decisionmaking process in dryly abstract terms.

(The students took the exam before Obama nominated Sonia Sotomayor.)

ADDED: Thanks to Glenn Reynolds and Jonathan Adler for linking. It's especially interesting to see the comments over at Volokh Conspiracy, and a couple readers thought my question was "ridiculous" or "unfair," so let me say this. First, it was an open book/open notes exam — so there is no value to getting students to recite doctrine. Second, in my conlaw classes, we concentrate on the different approaches to interpretation, and the exam tests for that. Third, my students had examples of my old exams and had every reason to expect something like this. A few days before the exam, I was sitting in a café and a student came up to me and just had to tell me that "Facebook was lit up" with my students trying to predict the question. There was a lot of focus on the Souter retirement. I wouldn't be surprised if some of the predictions came very close to the actual question asked.

Some Volokh commenters imagine that I had particular cases that I wanted the students to present as the right answers. I absolutely did not. What I gave most credit for was serious engagement with the problem of empathy — how it can extend to both sides in many cases and the different ways that empathy is expressed in the language of the cases. I especially liked when students broke through the surface of empathy vs. abstraction and did not simply convert it to liberal vs. conservative. I myself am convinced that Justice Scalia's interest in tradition springs from an emotional place. Read his dissents in United States v. Virginia and Lawrence v. Texas again and think about it. From the Virginia case:

I do not know whether the men of VMI lived by this ["Code of a Gentleman"]; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.

I am looking for intellectual engagement with ideas and with the texts of the opinions, and the students did an excellent job (especially with only 3 hours to do it).

And in case you are wondering what opinion won the empathy prize: here it is.

A little empathy would be good for the Court's balance. In Caperton v. Massey Coal, Scalia recently went on record saying that fairness was not to be found in the Constitution, so why bother looking?

The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. (Supreme Court ordered state supreme court justice who voted to reverse %50 million judgement in favor of largest campaign contributor ($3 million) to recuse himself. Scalia, J. dissenting)

Empathetic justices will not affect the course of justice, as I read the Chief Justice in his dissent in the same case. There is a “presumption of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U. S. 35, 47 (1975). All judges take an oath to uphold the Constitution and apply the law impartially, and we trust that they will live up to this promise. See Republican Party of Minn. v. White, 536 U. S. 765, 796 (2002) (KENNEDY, J., concurring) (“We should not, even by inadvertence, ‘impute to judges a lack of firmness, wisdom, or honor’” (quoting Bridges v. California, 314 U. S. 252, 273 (1941))). We have thus identified only two situations in which the Due Process Clause requires disqualification of a judge: when the judge has a financial interest in the outcome of the case, and when the judge is presiding over certain types of criminal contempt proceedings.

I suspect the contrast in reasoning between Rehnquist's strict adherence to the state action requirement for a constitutional violation versus the Brennan/Blackmun dissents positing a more expansive view under sec. 1983 might stick out in most students' minds.

If I had to guess, I'd say Griswold (the case that provided the foundation for Roe)....but I'd be curious to hear if any of the students looked for empathy in the Lopez decision. I haven't read the opinions lately, but the gun free school zone concept is certainly one in which "empathy" would be likely.

I agree with the choices that most of the commenters have suggested. But I would add a due process case that probably wasn't mention - one that I believe is more relevant to understanding the difficulty with considering "empathy" as a selection criterion for SC appointments.

Kelo was a state due process case involving application of the takings clause. One would think that an empathetic justice would look at the facts and wonder what "public use" was involved in stripping the property rights of small homeowners, many blue collar or poor, who had lived in their homes for years if not generations. Yet those justices that Obama would probably characterize as the most empathetic on the court were the ones who approved the state action rewarding crony captalists, while the cruel right wing justices were the ones fearful of state action.

We all know that what Obama means by empathy is a justice who would impose his liberal or leftist political policy views through court rather than legislative action. But the truly empathetic judge is one who strives to not impose his/her personal policy proscriptions but to rely on the usual (some would say originist) meaning of the Constitution. The Constitutional framework delineates the "empathy" required by our social contract. Empathy is seen in the religious protections, in the ban against cruel and unusual punishment, against arbitrary takings (or so we thought pre-Kelo) etc.

Here's a thought - how about we nominate and confirm some non-lawyer types? They would bring an entirely different "empathy" and set of experiences to the court. Or maybe Obama could select a different lawyer next time. One suggestion - a military JAG. Its not like we're not going to be in an armed conflict for some time. Somehow I think Obama has a different idea when he talks "empathy" in a judicial nominee...

With all due respect (a phrase matched in its ambiguity only by “all deliberate speed”), this seems to me to be anything but a reasonable examination on the topic of Constitutional Law. The fact that the professor reads them to note the cases chosen, not for Constitutional analysis but only for sociological profiling, proves the point.

“Empathy” as a shibboleth will fade from currency along with “distraction” and the other word games of this political season. Cutting the cloth of this year’s ConLaw class to fit that fashion might even piss off Lillian Hellman.

But, who knows, I might have framed a question around the literary sources of “all deliberate speed” and given everyone an A. That’s empathy.

Blackmun's dissent in DeShaney is the more egregious appeal to emotion.

From Wiki:

Blackmun's dissent is famous due to its fourth paragraph which is as follows:

"Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents [Wisconsin social services] who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve - but now are denied by this Court - the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide."

President Bill Clinton quoted the "Poor Joshua!" paragraph in his remarks on Blackmun's resignation, and the DeShaney v. Winnebago dissent was, along with his authorship of the Roe v. Wade decision, the most widely referenced element of Blackmun's career in obituaries following his death. It was also quoted as the headline for Time Magazine's article on the decision.

As if the case before the Supreme Court was about whether or not to save Joshua from his father.

I suspect Clinton, Obama and Sotomayor would agree with Blackmun that the Court should be empowered by "empathy" to encroach upon the limited authority of the congress to abrogate state sovereign immunity only through expressly worded legislation.

this seems to me to be anything but a reasonable examination on the topic of Constitutional Law. The fact that the professor reads them to note the cases chosen, not for Constitutional analysis but only for sociological profiling, proves the point.

Where does she say that she's interested in sociological profiling rather than constitutional analysis?

EdS said “Kelo was a state due process case involving application of the takings clause. One would think that an empathetic justice would look at the facts and wonder what "public use" was involved in stripping the property rights of small homeowners, many blue collar or poor, who had lived in their homes for years if not generations. Yet those justices that Obama would probably characterize as the most empathetic on the court were the ones who approved the state action rewarding crony captalists, while the cruel right wing justices were the ones fearful of state action.”

Exactly, EdS! Well said! Why was it that Ruth Bader Ginsburg (I believe she has ancestors who had private property confiscated by the Nazis) would side with crony capitalists and Scalia would side with the little people? Apropos of the earlier thread on demolishing parts of the rust belt cities, even as we sit here, greedy developers gaze at New Orleans--rich white guys getting ready to steal from poor black people. What does Beth think? How is Kelo playing out in New Orleans?

downtownlad said “Kelo was rightly decided. If you don't like the decision, then you should elect representatives who will change the law.”

Gee DTL, after Kelo, that is exactly what happened. Easily a dozen (if not several dozen) states passed some sort of “Takings Law.”

Any question to do with feelings is very popular with 1) the administration, particularly any of the grievance-culture bureaucracies; 2) all of those bleeding-heart liberal colleagues; and 3) students, except for the students who actually work for the grade -- that is, popular with everybody who shouldn't have been admitted to the university in the first place.

Jurist Dentist, just answer the question, or shut the fuck up, you ignorant ass hole. Haven't you anything better to do than hang around antagonizing people smarter than yourself with the same sorry-ass remarks? Piss off. You could not be less interesting. Bore.

"With all due respect (a phrase matched in its ambiguity only by “all deliberate speed”), this seems to me to be anything but a reasonable examination on the topic of Constitutional Law. The fact that the professor reads them to note the cases chosen, not for Constitutional analysis but only for sociological profiling, proves the point."

Reread the question. You haven't understood it. Students were required to analyze the reasoning in the cases and explain the way constitutional law was interpreted. In doing so, they had to explore and critique the component of constitutional decisionmaking that the President has said is crucial as he appoints a new justice. Finding strong examples was important and the choices had to be defended. Of course, I was interested in seeing which examples a large group of students thought fit the 2 categories.

Perhaps you haven't thought very deeply about constitutional interpretation. Seriously, reread the question and think a lot harder.

Perhaps you haven't thought very deeply about constitutional interpretation.

Many people seem to be under the impression that thinking deeply about constitutional interpretation means dismissing anything that smacks of complexity, uncertainty, or newness. In other words, many people don't know much about law yet are willing to loudly insist that their view of the law (which happens to mesh perfectly with their political preferences) is the correct view.

"In other words, many people don't know much about law yet are willing to loudly insist that their view of the law (which happens to mesh perfectly with their political preferences) is the correct view."

OK, I'll take a swing at the plate in the majors, and challange the thinking of anyone that wants to take my argument on:

Brown's majority opinion in Plessy v. Ferguson was full of empathy and consideration of the sensibilities of people.

Brown is dripping with empathy for humans when he writes: "If the two races are to meet upon terms of social equality, it must the be result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals."

Which shows that talking about a judge having empathy and a concern for people only begs the question:

Seems like a great question; topical and gives the students a chance to show off and make arguments.

I think a case showing some empathy would be the Nancy Cruzan case; even though it was not an outright victory for the family, the Court remanded (I believe) and eventually, after another trial, Ms. Cruzan's family was allowed to fulfill her wishes.

At least in recent years, opinions are careful to conceal that they were influenced by empathy for either side. Yet I can't help feeling that the lone Western sheriffs in U.S. v. Printz, called away from patrolling hundreds of square miles of open land by the all-embracing Federal government, merely to process some gun-buyers' paperwork, without compensation, made the pro-federalism opinion easy to justify.

Similarly, although the decision in U.S. v. Morrison seems a mere abstract discussion of the expansion of the Commerce Clause since Wickard, the dissent reels off half a page of (the economic effects of) violence against women.

At least not at the U.S. Supreme Court, Cruzan was not an "empathy" case, but was instead grounded entirely on a reading of the Due Process Clause and holding that Missouri's requirement of a high evidentiary standard for a surrogate to withdraw food and water did not violate procedural due process.

"Whether or not Missouri's clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the State may properly seek to protect in this situation. Missouri relies on its in terest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the States, indeed, all civilized nations, demonstrate their commitment to life by treating homicide as serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. [n.8] We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically-able adult to starve to death.

But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. . . . Finally, we think a State may properly decline to make judgments about the "quality" of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual."--497 U.S. 261

Now, it is true that, on remand, the state court suddenly accepted "new and additional" evidence, and thereafter allowed the withdrawal of food and water, leading to Nancy's death.

It should also be noted that, after he helped lead the charge to end his daughter's life, Nancy's father Joe began to suffer increasing depression, and he eventually hanged himself.

"Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The [Partial Birth Abortion] Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.

In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue.

It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form."

Dred Scott. Taney's opinion was full of consideration for the feelings and sentiments of white people who would feel jeopardized and threatened in the event that blacks were allowed the full benefits of citizenship.

Mahan Atma (mail):I'm sorry, but that is a ridiculous question for a con law exam.

Not that there's anything wrong with it. Discovering a judge's "empathy" is a great tool for a litigator. It give one insight to the prejudices deeply held and can help frame arguments and strategy. But, as a desired and open quality for a judge it is obscene.

The question is better suited for some trial practice class.

On that note, I will foreswear further encroachment on the fair, young professor's exam.

former law student said...A little empathy would be good for the Court's balance. In Caperton v. Massey Coal, Scalia recently went on record saying that fairness was not to be found in the Constitution, so why bother looking?

I really hope you're a failed former law student, because it seems rather clear that logic and reason are beyond you.

Because if you were capable of either, you would understand that claims of "fairness", like claims of "empathy", are entirely driven by ones personal beliefs and desires. you and I are highly unlikely to agree on what is "fair", because you and I disagree on basic standards of right and wrong.

When someone claims that they just want "fairness", what they're really saying is "I just want to get my way." Or, to put it another way: "I dont' care what the law says, I want an outcome that makes me happy."

And no, the Constitution does not guarantee that you will be happy with properly determined decisions.

"Conservatives ignore the "just compensation" clause, and want the government to be forbidden from taking property under any scenario. Via activist judges to boot."

conservatives have been the only ones acknowledging the existence of the "just compensation" clause for years -- Lucas, Nollan, Dolan , etc.

Now I do you think you can make out a case that there is a conservative empathy that animates discourse in this arena. This is the conservative little guy vs.the system meme.

Think any of the inverse condemnation cases in which Scalia beats up the government for infernal delay and multiplicity of overlaying jurisdictions and procedural frustrations.

Other commentors have capably pointed out that the question in Kelo was not compensation -- which conservatives favor -- but "public use" which they want tested more vigrously.

You can make out a case that Kelo was rightly decided, but the poster's point wasn't to reargue the case. Rather they indicate the man bites dog residence of the empathy in that proceeding.

I'd say you've got a fairly wide chip on your shoulder regarding this case and the widespread approbation of the result that makes it the Plessy of our age -- elevating social concerns and structure over individual liberty and dignity.

Flexo -

If you're still there I'm wondering if I am recalling Holmes's terse prose correctly or if you are pulling our leg placing Buck v. Bell in the empathy column.

Brian

I think your response proves up the preceding comment, that "fairness" is another way of saying "I just want to get my way". Meaning to say that Obama's appeal to empathy has no objective content.

I think it pretty clear that those who would use empathy as a standard for judicial decisionmaking tend to go hand-in-hand with those who advocate eugenics. To be sure, Holmes' whole judicial philosophy of "legal realism" is an exercise in judicial empathyism. Make no mistake, Holmes ranks right up there with Taney as one of the greatest evils of the Court. And his contemptuous remark, "three generations of idiots is enough!" is hardly an expression of objective constitutional interpretation.

There is a place for empathy. That should not be denied. But the place for empathy is in equity, not at law. The day that they started merging the law courts and the equity courts was the day that law, as such, went right out the window and everything was subject to being decided on the judge's whim, even if wrapped in nice precedential clothing.

I agree with all your characterizations of Buck v. Bell. It is perhaps the most undercited due process case for obvious reasons. I had the pleasure of hearing Michael Crichton challenge a meeting of the skeptics society of that decisions and the progressive ideals it embodies.

That said, I think it is overly semanticized to suggest that Holmes is working from 'empathy' as it is understood in this discussion which is as favoring the little guy.

So citations to Kelo and conservative empathy have propriety, but I think Holmes ruling is out and out policy preference. It doesn't disguise itself as empathetic. Of course Holmes has empathy for those who agree with the outcome, but I think it pushes the point a hair.

And the disastrous results of Plyler (which are, for obvious reasons, more obvious to those of us on the Mexican border than those of you on the Canadaian) show decisively that empathy is a terrible reason to make decisions based (nominally) on the Constitution.

It's bad enough when ordinary legislators make decisions on "empathy", but when our robed masters do it, and the inevitable disaster follows, there is no recourse.

The political capital required to appoint a Supreme Court Justice. Obama will replace a liberal with a liberal , so this won't be interesting until we got names. Justice Souter, appointed by President George H. W. Bush in 1990.